State v. Lund

• Decision Date: 10 March 1993
• Docket Number: No. 14124-8-II,14124-8-II
• Citation: 70 Wn.App. 437,853 P.2d 1379
• Parties: The STATE of Washington, Appellant, v. Vicki LUND, Respondent.
• Court: Washington Court of Appeals

Page 437

70 Wn.App. 437

853 P.2d 1379

The STATE of Washington, Appellant, v. Vicki LUND, Respondent.

No. 14124-8-II.

Court of Appeals of Washington Division 2.

March 10, 1993.

As Amended on Denial of Reconsideration June 29, 1993.

David W. Murdach, Tacoma, for respondent.

John W. Ladenburg, Pros. Atty., and Christine J. Quinn-Brintnall, Deputy Pros. Atty., Tacoma, for appellant.

MORGAN, Judge.

The State appeals from an order suppressing marijuana found in Vicki Lund's purse and suppressing her subsequent confession. We reverse.

The facts are essentially undisputed. ¹ In the fall of 1989, Jonathon Woods, Wayne Anderson and Jeff Lane were charged with aggravated murder. All three men were in the Pierce County jail pending trial, and all three had separate counsel.

On October 2, 1989, Deputy Berg of the Pierce County Sheriff's Office was contacted by a defense attorney representing yet a fourth inmate of the Pierce County jail. The attorney told Berg that his client had information about drugs being smuggled into the jail.

On October 6, Berg interviewed the inmate face-to-face in the jail. He asserted that drugs were being smuggled into the jail but provided no names. The State and the inmate then entered into a contract providing that in exchange for the inmate's cooperation, the State would grant him certain benefits in his own case.

On October 10, 1989, the inmate was again interviewed by Berg. He related that Wayne Anderson was possessing drugs inside the jail, and that Anderson was getting the drugs from his attorney, who was also his girlfriend. He said that he had received this information from Anderson himself and from other inmates. He said that he had seen the attorney- /girlfriend visit Anderson every few days; that he had seen them enter and exit the jail visiting roomtogether; and that he had seen Anderson with controlled substances. He had not seen any actual drug deliveries. He did not know the attorney/girlfriend's name, but he described her as about 45 years old, 5'3", 105-110 pounds, blondish hair, and glasses.

Also on October 10, Berg and Sergeant Reed conferred with several prosecutors, including deputy prosecutor Jerry Horne. Horne thought the informant's description of the attorney/girlfriend fit a woman named "Vicki." He did not know Vicki's last name, but he knew she was a paralegal working for the attorney who represented Woods. According to Berg's later testimony, Horne said he had been concerned about a seemingly "infatuous" attitude between Vicki and Anderson.

Still on October 10, Berg returned to the jail and examined the visitors log. No one named "Vicki" had signed in to visit Anderson, but Vicki Lund, a paralegal employed by the law firm representing Woods, had signed in numerous times to visit Woods, another inmate named Dennis Weinrich, and "Programs and Services." No other "Vicki" was listed in the visitors log, and a check with the Department of Licensing confirmed that the informant's description of Anderson's attorney/girlfriend matched that of Lund.

Still on October 10, Berg again interviewed the informant. She was told by the informant that Vicki would be visiting Anderson later in the day.

On October 11, Berg again checked the jail log to see if Lund had visited Anderson the previous evening. She found that Lund had signed in to visit Woods.

On October 12, jailer Morales forwarded a report to Berg stating that at 7:40 p.m. on October 10, 1989, he had observed Lund and Anderson having contact with each other in one of the jail interview rooms. As already noted, Berg previously had learned that on the evening of October 10, Lund had signed in to see Woods, not Anderson.

On October 13, Officer Benton reported that a fifth inmate had complained about Anderson having drugs in the jail. According to the report, Anderson was getting drugs from his attorney.

On October 16, Deputy Hoffman received an anonymous phone call from someone outside the jail informing him that there was a good possibility drugs would be smuggled into the jail that night. The caller asserted where and when the transaction would occur. Hoffman forwarded this information to Berg.

On October 17, the original inmate informant told Berg that "Vicki" would be bringing drugs to Anderson that night. Berg obtained a court order authorizing her to video tape Lund and Anderson. The equipment was set up but removed after Lund failed to show.

Also on October 17, Hoffman received a second call from his outside informant, who was still anonymous. This informant stated that the deal had not taken place on October 16 as predicted, and agreed to meet Hoffman later that day. At the meeting, Hoffman obtained the informant's name and certain biographical information. The informant had no track record of reliability with the Pierce County Sheriff's Department, but Hoffman confirmed he had previously provided the Centralia Police Department with information leading to several arrests. The informant provided some details about the smuggling of drugs into the jail, and said he did not know when the next delivery would occur.

On October 18, at about 8:35 a.m., Hoffman's outside informant called him again. The informant told Hoffman that "Vicki" would soon meet a woman named Tanya in the Fred Meyer parking lot at 72nd and Pacific, pick up some drugs, then bring the drugs into the jail at about 10 AM. He said "Vicki" would be driving a silver Toyota Celica, license number 550 ASK, and Tanya would be driving a grey Dodge pickup or a brown station wagon. Upon checking with the Department of Licensing, Hoffman found that 550 ASK was the license number of a silver Celica registered to Vicki Lund.

Four deputies staked out the Fred Meyer parking lot, and the silver Celica and brown wagon arrived as predicted. Each was occupied by a woman driver who had no passengers. The driver of the station wagon got into the Celica, and the two women conversed. After the driver of the brown station wagon exited the Celica, Lund drove north toward the jail, with deputies following.

Lund parked near the jail and went inside, with Deputies Hoffman and Reed still following. Lund and Reed rode the elevator to the visitor's reception area on the fourth floor, where Lund signed in to see Dennis Weinrich. Control room personnel admitted her into a long corridor that leads from the reception area to the main part of the jail. The corridor has locked doors at each end. After Lund was out of earshot, Hoffman told the jail staff not to admit Lund to the main part of the jail.

While Lund was in the corridor, Deputies Hoffman and Reed approached her and identified themselves. One of them stated, "[W]e are investigating some contraband being smuggled into the jail, and we would like to talk to you." Lund replied, "I guess you guys have been waiting for me." One of the deputies said, "Yes, we were." One of them then went on to say, "We would like to go back to the reception area and talk to you there." At that point, Hoffman seized Lund's purse and briefcase, ² saying "I'll take these."

When the three arrived back in the visitor's reception area, ³ they went over to one corner and sat down. Lund was read her Miranda rights, which she said she understood. The officers asked her if she had any drugs on her person or in her purse, and she said she did. When the officers asked her for the drugs, she opened her purse (which apparently was still in Hoffman's possession), removed two baggies of marijuana, and handed them to Hoffman. Roughly 4 minutes elapsed from the initial stop in the corridor to when the marijuana was produced.

After Lund produced the drugs, the officers informed her she was under arrest, handcuffed her, and took her to a nearby interrogation room. There, they again advised her of her rights and, after signing a written waiver form, she gave a taped confession.

The State charged Lund with (1) unlawful possession of marijuana with intent to deliver and (2) unlawful possession of marijuana. The trial court granted Lund's motion to suppress the marijuana, and the State appeals.

The trial court did not find that Lund's act of producing the marijuana from her purse was a search by the police. ⁴ Essentially, its ruling was that Lund's act of producing the marijuana would not have occurred but for precedent, illegal police activity, and that the marijuana was therefore the "fruit of the poisonous tree." Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963); State v. Kennedy, 107 Wash.2d 1, 4, 726 P.2d 445 (1986). The issue, then, is whether the police acted illegally before Lund produced the marijuana from her purse. If not, the discovery of the marijuana was lawful, and the motion to suppress should have been denied. If so, the discovery of the marijuana was unlawful, and the motion to suppress was properly granted.

In order to determine whether the police acted illegally before Lund produced the marijuana from her purse, it is necessary to address two questions. First, did the police act illegally when they seized and detained Lund's person? Second, did the police act illegally when they seized and detained Lund's purse?

I.

Not every encounter between a citizen and the police constitutes the seizure of a person. State v. Mennegar, 114 Wash.2d 304, 310, 787 P.2d 1347 (1990). Thus, police do not necessarily effect the seizure of a person because they engage the person in conversation, State v. Mennegar, 114 Wash.2d at 310, 787 P.2d 1347; Florida v. Royer, 460 U.S. 491, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983); United States v. Mendenhall, 446 U.S. 544, 554-55, 100 S.Ct. 1870, 1877, 64 L.Ed.2d 497 (1980), or because they identify themselves as officers. Florida v. Royer, 460 U.S. at 498, 103 S.Ct. at 1324. However, police do effect the seizure of a person when they objectively manifest that they are restraining the person's movement, and "a reasonable person would have believed that he [or she] was not free...